JUST MUSING: “Happy belated Black History Month”…

He, Elmo Willard, sat before me, a mixture of both anger and sadness.  A sadness which should not have existed, which belied his history, inconsistent with his recent nomination by the Eastern District Judges naming him as the next United States Magistrate for the Beaumont Division of the court.  He held in his hands a package, obtained after making a Freedom of Information Act request, containing letters opposing his appointment, from members of his bar, some even occupying the state court benches in Beaumont.  The names had been redacted, even with the redaction, a careful read allowed one to determine the author of most, if not all, the letters.  Time slowed, we both grew quiet, we both started to cry.  Not the cry you cry when you lose a parent. Not the cry which accompanies the unexpected death of a child.  Not the cry you cry with the loss of a love, no matter whose fault it is, no matter what each of you have said in anger, matters not, you cry.  I excused myself from the table, moving around, passing this elegant man, reaching, grabbing for tissues, as if they were our life-line – blowing, blowing, attempting to blow away the years the documents’ history represented, the memories.

We shared stories and cataloged names: Gabrielle Kirk McDonald, Ned Wade, Matthew Plummer, Aloysius Wickliff, Theodore R. Johns.  “I receive, one, maybe two calls a year from Mr. Plummer and Mr. Wickliff.”  Men I had not personally met, always encouraging, inviting me to visit when I was in Houston.  “I know who you are, sir.  I am honored to receive your call,” I told Elmo.   I said I understood the importance of their calls, binding history, providing understanding of my work as a lawyer, lending an extended hand.

“I know who you are,” telling Elmo the same thing I said to Mr. Plummer and Mr. Wickliff, without telling him the source of my knowledge.  My source was reading, and conversations with Gabrielle surrounding the contributions of the African American bar.  Contributions ignored by our profession, leading to attacked by our colleagues, the public, using the grievance process as both shield and ax, part of the continuum.   I reached and grabbed another tissue, continued to read, thumping, cataloging, seeing and remembering history, mindlessly wiping and blowing.

I mentioned Ned Wade’s disbarment.  Ned represented the best of us, not a race assessment – he was the best of us.  I told Elmo of the outpouring the Houston bar showed at his funeral, “not an empty seat, not a dry eye.”  I saw and heard shame in the faces and voices of the lawyers and judges who paid homage.  Ned’s smile radiated from the pages of the program.  His anguish still remained in my heart.  “Prior to Ned’s death, he hired me to determine how he could obtain his law license back.  He had no intentions of practicing again.  He wanted his license back, maybe he anticipated his death.  I proposed a constitutional challenge to the requirement that he retake the bar exam, studying, suggesting, evaluating.  It was not to be, maybe age, maybe time, maybe he was just tired.  Ned always kept in touch, calling, stopping into the office, looking for, “my constitutional lawyer”, causing my chest to swell, the color in my hands to become more intense, forcing my eyes to cast in another direction, the same casting a boy does when a father’s acknowledges, bestowing blessings.

Elmo and his partner, Theodore Johns, brought suit in September 1954 against the City of Beaumont to open the golf course and other city facilities, including the public libraries, to citizens of color.  In 1955, they sued Lamar State College, now Lamar University, to end discrimination.  Suits against the school district and other public entities followed – he didn’t have to tell me who he was, I had studied history, wishing to meet him and Mr. Johns one day.  While reading, I too cried history’s cry, understanding then and when he sat before me that the redacted letters represented the historical hate he endured, and fought against.

“What is the position of the district judges, are they going to stand by their recommendation?”

“As far as I know, they are.  They are encouraging me to continue through the process.  I believe I still have their votes.”

“You do intend to continue through the process?”

“No, I do not, I do not.”

The big, tall man, with elegant African features, withdrew further, curled his body inward, placed his hands over his face, steeling tears, reliving those years, attempting to mask his anger, failing he did, the tears flowed.  He didn’t bother to wipe at this time; didn’t bother to mask.

“I want you to write a letter to each one of the persons (confession:  Ned actually used another word to provide a description of persons) who wrote these letters, demanding an apology and retraction.  If an apology is not forthcoming, I want you to sue them for defamation.”

I tried to lessen the hurt, I told him of stories told to me by others and their experiences.  My words didn’t matter.  Others histories didn’t either.  His history lied in the contours of his hands (age lines telling their own story), and in the copies of the documents he had provided me, documents which he had tabbed, and annotated.  Elmo then reached in his bag, pulling out yellowing and slightly torn news articles, and letters he had saved over the years (containing veiled threats and promises of retribution), allowing me to identify for myself the authors.

“I have already told the judges of my anticipated intent to withdraw my name from consideration after this meeting.  Will you represent me?  Will you write the letters?  Will you bring the lawsuits if necessary?”

“Yes, sir, I will.”

Time continued to conspire.  Images of separate bathrooms, restricted water fountains, segregated schools, and the harrowing resignation sealed and contained in my father’s eyes, played out while we talked.  Words of hate, danced about us, occupying the physical and emotional space we occupied.  Elmo, generations older than I, became licensed the year I was born, extended his graceful hand, then just as fast withdrew his hand, grabbing and pulling instead.  Holding, hugging, and securing, bound by a bellowing laugh-cry; complimenting, “happy to meet you.” I too laughed and hugged while attempting not to see the mythical words and images which hung above us, in a cartoon bubble no less.  I dared not interfere with his thoughts, dared not puncture the bubble, causing the words to flow outward; I didn’t want to cry any more.

I wrote the letters, letters addressed to district judges, politicians, prominent members of the Jefferson County Bar, men (and if I remember, one woman) who were the status quo, or represented the status quo, who fought to keep segregation forever.  Men who had not forgotten, promising Elmo that they would pay him back for his challenge, lawsuits representing social change, and decades later making good their promise, writing letters opposing his appointment to the federal bench.  “He divided our community”, were their words.  “He should not be rewarded with such an august appointment”, was their conclusion.  The letters inferred criminality, without any proof of criminality.  They hinted at moral transgressions, spreading dirt, covering and soiling, as best they could – actions designed to prevent Elmo’s assignment to a bench traditionally reserved for them, for their heirs.

I never saw Elmo again.  We received letters of apologies and transmitted those letters immediately to him.  Some of the letters came from the very judges I practiced before, apologies extended, letter withdrawn, and admitting the falsity of their words.  I handled my business, moving in and about their courtrooms and then escaping as soon as I could.  Elmo and I never talked again.  He withdrew his name from consideration, asking the federal judges to appoint someone else.   He copied me with a copy of the letter and their acknowledgment.  Elmo Willard, III passed from this earth in 1991, at the age of sixty, I sure still crying, laughing, and hugging.  I know Black History month has since passed, “may I, Mother may I”, muse on why race still matters.

*          *          *

 Recently, Judge Olu Stevens, a Circuit Judge in Louisville, Kentucky (pictured above) was declared ineligible to try criminal cases.  This occurred after Judge Stevens granted motions, and stated verbally, that black jurors too should be allowed to serve on jurors.  Judge Stevens’ rulings, and verbal statement, were consistent with the United States Supreme Court’s decision in Batson v. Kentucky.  After being reinstated to hear criminal cases (by the superior court), the prosecutors renewed their motions, accompanied by a public debate as to the ability of the judge to be fair.  His Honor then brought suit seeking to protect his First Amendment rights.  When I read, I wished, I wished, I so wished I could have introduced Judge Stevens to Elmo Willard.

The web-site, Race, Racism and the Law provides a review of the problem:  The Law School Admission Council (LSAC) reported that [o]nly 1 in 25 lawyers is African American, Latino, Asian American, or Native American. These numbers clearly illustrate that minority groups are severely under-represented in the legal profession. African American males, in particular, are among the most under-represented groups.  Based on the 2000 Census, African Americans represent 3.9% of lawyers in the country, of whom 2.0% are African American males. Even though there has been some increase in the number of African American male lawyers during the past forty years, the increase has only been marginal.  One study of census data reported that in 1960, 2.0% of male lawyers and judges ages 36-45 were African Americans. After several decades of litigation, affirmative action, and various initiatives, in 2000 the proportion in the same group has grown only modestly to 2.8% of male lawyers.”   The Guardian (May 2015), surmised what the numbers meant (Why the US needs black lawyers even more than it needs black police), writing, “According to the American Bar Association, 88% of all lawyers are white and only 4.8% are black, so for each of the 60,864 black lawyers, there are 686 black citizens needing assistance (compared with only 282 white citizens for each of the 1,117,118 white lawyers).”

The source of the quote, “You’re still black” can’t be determined by a quick search.  Since, I can’t determine the source I will assign the quote to my mother.  A generational reminder, something she didn’t want her children to forget; something the society will never let us forget.  Let me see if I can make this make a little more sense, not so esoteric.  The Guardian article recounts the story of Assata Shakur, which evolved out of a police stop on May 2, 1973. “Assata Shakur was stopped on the New Jersey Turnpike by a state trooper named James Harper, allegedly for driving with a faulty rear light. In the car with Shakur were fellow Black Liberation Army (BLA) members Zayd Malik Shakur and Sundiata Acoli. In a second patrol car was Trooper Werner Foerster.  Minutes after they pulled over, both Zayd Malik Shakur and Trooper Foerster were dead, and Assata and Trooper Harper were shot and wounded.  In 1977, Shakur was convicted on one murder charge and six assault charges and sentenced to life in prison. She escaped in 1979 with the assistance of BLA members posing as visitors, and has been a fugitive ever since. … The FBI placed the 66-year-old on its list of the top 10 most-wanted terrorists.”  Shakkur met Lennox Hinds, the National Director of Black Lawyers, while in the hospital.  After his hospital visit, Hinds told the press, “In the history of New Jersey, no woman pretrial detainee or prisoner has ever been treated as she was, continuously confined in a men’s prison, under 24-hour surveillance, without adequate medical attention and exercise.”  Hinds’ statements were made before bringing a civil rights suit against the state to address the constitutionality of her pre-trial detention.

“In January 1977, after years of incarceration, the case was brought before a judge and jury in New Jersey.”   Hinds called the trial “a legal lynching and a kangaroo court”.   Hinds’ inability to keep his mouth shut caused the New Jersey Bar Association to bring Hinds up on ethics charges (seeking disbarment), a case which wound itself in and out of the court system for years before Hinds’ was exonerated.  The best I can tell Lennox Hinds is still living.  Somehow I wish the good professor would pick up the phone and instruct the good judge to attribute the statement on race to his mother or even better, allow him, the good judge, to attribute the statement to his mother.  I wouldn’t object.  Elmo wouldn’t object – I’m sure – even though the reminders would cause him to wipe, and clear his voice, before agreeing.

My memory tells me that Judge McDonald faced at least two motions from litigants questioning how a non-white judge could ever be fair to whites, there may have been more.  May Judge Stevens not be discouraged and recognize other judges of color have been likewise treated.  May he and his lawyers study history, and others’ treatment, as he continues his fight to remain a judge; salvaging his reputation, quieting the voices of contempt?  If Judge Stevens won’t listen to Judge McDonald, possibly he will read and study the history of Judge A. Leon Higginbotham, Jr.  Judge Higginbotham too was subjected to similar motions.    I am sure he, Ned and Elmo have spent a many nights discussing the law, casting aside aspersions, laughing and hugging while wondering whether race still matters, even though they have long since left us, gifting us with illustrative histories, histories which suggest race still does matter.

So go figure, an African American judge residing in the State of Kentucky, removed for seeking to make sure juries reflect the community’s composition; a ruling supported by the highest court in the land’s previous decision, directed to the conduct of prosecutors in the same state – Kentucky.  We are a funny, funny country.  Happy belated Black History Month “Your Honor” … so I muse.

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